GEORGE MANDALA, CHARLES BARNETT, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. NTT DATA, INC., Defendant-Appellee.
19-2308-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 23, 2021
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of February, two thousand twenty-one.
Present: DEBRA ANN LIVINGSTON, Chief Judge, JOSÉ A. CABRANES, ROSEMARY S. POOLER, ROBERT A. KATZMANN, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, MICHAEL H. PARK, WILLIAM J. NARDINI, STEVEN J. MENASHI, Circuit Judges.
For Plaintiffs-Appellants: Ossai Miazad, Lewis M. Steel, Christopher M. McNerney, Outten & Golden LLP, New York, NY; Rachel Bien, Outten & Golden LLP, Los Angeles, CA; Sherrilyn A. Ifill, Janai S. Nelson, Samuel Spital, Rachel M. Kleinman, NAACP Legal Defense & Educational Fund, Inc., New York, NY; Catherine Meza, NAACP Legal Defense & Educational Fund, Inc., Washington, DC.
For Defendant-Appellee: Jacqueline Phipps Polito, Jessica F. Pizzutelli, Littler Mendelson P.C., New York, NY.
Following disposition of this appeal on September 21, 2020, Plaintiffs-Appellants filed a petition for rehearing en banc and an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, the petition for rehearing en banc is hereby DENIED.
Rosemary S. Pooler, Circuit Judge, joined by Denny Chin, Raymond J. Lohier, Jr., and Susan L. Carney, Circuit Judges, dissents by opinion from the denial of rehearing en banc.
Denny Chin, Circuit Judge, joined by Rosemary S. Pooler, Robert A. Katzmann, Raymond J. Lohier, Jr., and Susan L. Carney, Circuit Judges, dissents by opinion from the denial of rehearing en banc.
Raymond J. Lohier, Jr., Circuit Judge, joined by Rosemary S. Pooler, Robert A. Katzmann, Denny Chin, and Susan L. Carney, Circuit Judges, dissents by opinion from the denial of rehearing en banc.
Peter W. Hall, Circuit Judge, took no part in the consideration or decision of the petition.
FOR THE COURT:
Catherine O‘Hagan Wolfe, Clerk
RICHARD J. SULLIVAN and WILLIAM J. NARDINI, Circuit Judges, joined by DEBRA ANN LIVINGSTON, Chief Judge, and JOSÉ A. CABRANES and MICHAEL H. PARK, Circuit Judges, concurring in the order denying rehearing en banc:
Unsurprisingly, we concur in the order denying rehearing en banc – we are, after all, the members of the majority that voted to affirm the district court‘s dismissal of the complaint in this matter. We add this brief concurrence only to explain our belief that the dissents misapprehend the nature and consequences of the panel majority opinion, which reflects a heartland application of the plausibility pleading standard that has been the law of this Circuit for more than a decade. Put simply, we see no reason to fear that requiring Title VII plaintiffs to allege a plausible link between their chosen statistics and the qualified labor pool for the jobs in question will fundamentally alter the existing Title VII architecture.
The thrust of the dissents’ argument is that statistics concerning the general population can be used to “nudge” a disparate impact claim “across the line from conceivable to plausible” at the pleading stage. Post, Chin, J., dissenting from denial of rehearing en banc, at 6 (internal quotation marks and brackets omitted); see also post, Pooler, J., dissenting from denial of rehearing en banc, at 3. As a general proposition, we agree. See Mandala v. NTT Data, Inc., 975 F.3d 202, 210–11 (2d Cir. 2020). But courts are not called on to announce general propositions; they are tasked with deciding particular cases based on specific pleadings. And the specific pleadings here do not plausibly allege that the general population is likely to be representative of the qualified labor pool for the jobs in question. In fact, the allegations in the complaint suggest that the general population is unlikely to be representative of the qualified labor pool.
At the pleading stage, a Title VII disparate impact complaint must plausibly allege that (i) a specific employment practice or policy exists, (ii) a disparity exists, and (iii) there is a causal connection between the two. Id. at 207–09. While reference to statistics frequently satisfies this pleading burden, both caselaw and common sense make clear that not just any statistics will do. Id. at 209–11. After all, “statistics come in infinite variety and . . . their usefulness depends on all of the surrounding facts and circumstances.” Malave v. Potter, 320 F.3d 321, 327 (2d Cir. 2003) (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 996 n.3 (1988)). In the disparate impact context, this means, among other things, that a plaintiff‘s chosen statistics must focus on disparities between appropriate comparator groups – that is, the individuals holding the jobs at issue and “the qualified population in the relevant labor market.” Mandala, 975 F.3d at 210 (footnote omitted) (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650 (1989), superseded by statute on other grounds,
Naturally, information about these particular groups may be difficult to obtain during discovery, let alone at the pleading stage. So we often allow plaintiffs to rely on surrogate statistics to prove disparities between comparator groups that they otherwise could not measure directly. In many cases, this includes statistics for the general population. Mandala, 975 F.3d at 210–11; see also Malave, 320 F.3d at 326. But not always.
As the panel majority opinion concludes, general population statistics may be used only when there is reason to think that they will reflect the qualified labor pool for the positions in question. See Mandala, 975 F.3d at 211 (citing Dothard v. Rawlinson, 433 U.S. 321, 330 (1977); Malave, 320 F.3d at 326; and EEOC v. Freeman, 961 F. Supp. 2d 783, 798 (D. Md. 2013), aff‘d, 778 F.3d 463 (4th Cir. 2015)); see also Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.13 (1977) (explaining that “[w]hen special qualifications are required to fill particular jobs, comparisons to the general population . . . may have little probative value“). Not only is this rule consistent with precedent, it makes good sense. If there is no plausible link between the alleged disparate impact and the statistics that the plaintiff uses to plead his case, then those statistics are at most merely consistent with liability. And “[w]here a complaint pleads facts that are merely consistent with a defendant‘s liability, it stops short of the line between possibility and plausibility of entitlement to relief.”1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
Of course, as Judge Chin‘s dissent indicates, and as the panel majority opinion acknowledges, “at the pleading stage, a plaintiff need not prove the accuracy of a statistical study‘s findings or the rigor of its methodology; he need only generally allege the facts that, accepted as true, make his alleged injury plausible.” Post, Chin, J., dissenting from denial of rehearing en banc, at 13–14 (brackets omitted) (quoting John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 737 (2d Cir. 2017)); see also Mandala, 975 F.3d at 209–10 (citing John, 858 F.3d at 737). But one must be careful not to elide the distinction between testing the soundness of a statistical study, and determining whether that study and its statistics, if taken as true, make the plaintiff‘s claim plausible. While John concerns the former, 858 F.3d at 737, the panel majority opinion turns on the latter. Put differently, John stands for the unremarkable proposition that, at the pleading stage, we accept as true the findings of statistical studies. But that does not mean that we must take as true every inference that a plaintiff asks us to draw from those findings no matter how attenuated.
In affirming the dismissal of Plaintiffs’ complaint, the panel majority opinion reasoned that Plaintiffs had failed to provide any connective tissue between their proffered statistics and the qualified labor pool in question (indeed, just the opposite). The dissents assert that the panel majority opinion arrived at this conclusion by impermissibly drawing inferences against Plaintiffs. Not so.
To start, Judge Chin‘s dissent suggests that the panel majority opinion‘s conclusion was premature because “the applicant pool . . . has not yet been defined,” post, Chin, J., dissenting from denial of rehearing en banc, at 23, and because we don‘t yet know whether the “Salesforce developer” and “web developer” positions at issue here require specialized training or education not shared among the general population,
Next, the dissents suggest that, even if the qualified labor pool in question is more educated than the general population, that does not prohibit Plaintiffs from pleading a plausible claim based only on general population statistics. Post, Chin, J., dissenting from denial of rehearing en banc, at 25–26; post, Pooler, J., dissenting from denial of rehearing en banc, at 3–7. Again, we disagree.
Conviction rates and educational attainment are nearly certain to be inversely correlated on an absolute basis. See Mandala, 975 F.3d at 212 (reasoning that “it is not much of a stretch to imagine that arrest and conviction rates are negatively correlated with education (at least to some degree)“). This is not to suggest any particular causal relationship between education and a decrease in conviction rates; there is simply a longstanding link between the two. In other words, the conviction rates for African Americans (and, for that matter, individuals of any race) will fall as we control for higher educational attainment.
This conclusion is not, as Judge Pooler‘s dissent suggests, “a negative inference [drawn] against the complaint that was not in the record.” Post, Pooler, J., dissenting from denial of rehearing en banc, at 4. “The determination of whether a complaint states a plausible claim for relief is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.‘” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 258 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 679). Here, common sense dictates that highly educated individuals can be expected to have lower conviction rates than the general population – indeed, Judge Pooler‘s dissent acknowledges as much. See post, Pooler, J., dissenting from denial of rehearing en banc, at 5. The panel majority opinion simply applied that understanding in considering whether the allegations in the complaint stated a plausible claim for relief. In other words, the panel majority opinion simply concluded that Plaintiffs were asking the district court to draw inferences that, based on common sense, were too attenuated from the supplied statistics to be plausible.
Of course, as Judge Chin‘s dissent points out, that absolute conviction rates will fall as we consider more highly educated segments of the population does not mean that the disparity between the conviction rates for African Americans and whites will necessarily disappear. Post, Chin, J., dissenting from denial of rehearing en banc, at 26. But what it does mean is that, based on the allegations in the complaint, we have no idea what the difference between African American and white conviction rates will be once we limit our
As the panel majority opinion was careful to explain, this does not mean that national statistics can never be used in disparate impact cases involving skilled positions. Plaintiffs simply need to “provide additional allegations to explain why their chosen national statistics are in fact likely to be representative of [the] qualified applicant pool” in question. Mandala, 975 F.3d at 212. Here, that could have taken the form of additional national statistics indicating that, even as education levels increase, racial disparities between conviction rates remain. But Plaintiffs failed to provide such allegations. It is for that limited reason that the panel majority opinion affirmed the district court‘s dismissal of Plaintiffs’ complaint for failure to state a claim.
While that is sufficient to resolve the matter, it bears noting that new facts introduced by an amicus brief filed in support of rehearing the case confirm this conclusion and underscore the limited impact of the panel majority opinion. Specifically, a brief submitted by several criminology and sociology professors, Dkt. No. 146, identifies a study indicating that “Black men with some college education have imprisonment risks that are seven times greater than white men with some college education (4.9% for Black men compared to 0.7% for white men),” post, Chin, J., dissenting from denial of rehearing en banc, at 9 (quoting Kurlychek Amicus Br. at 9); see also post, Pooler, J., dissenting from denial of rehearing en banc, at 6. In other words, the very figures that might have rendered Plaintiffs’ claims plausible not only exist but also are publicly available; Plaintiffs simply failed to include them in their pleadings. See Port Auth. of N.Y. & N.J., 768 F.3d at 258 (noting that “imprecise pleading is particularly inappropriate where the plaintiffs necessarily had access, without discovery, to specific information from which to fashion a suitable complaint” (internal quotation marks and alterations omitted)).
As a result, we see no reason to believe that the panel majority opinion will become “a dangerous precedent” that shuts the courthouse door to disparate impact claims. Post, Chin, J., dissenting from denial of rehearing en banc, at 28. The fact that such publicly available statistics exist indicates that there is ample factual material on which future litigants may rely to plead plausible disparate impact claims.
* * *
To be clear, we do not take issue with the dissents’ descriptions of the significance of Title VII. See, e.g., post, Pooler, J., dissenting from denial of
For decades, Title VII claims – just like all other claims – were subject to a plaintiff-friendly notice pleading standard. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). That changed with the Supreme Court‘s announcement of the plausibility pleading standard in Twombly and Iqbal. For better or for worse, that standard made it harder for all plaintiffs, not just Title VII plaintiffs, to state a claim for relief. Although one can surely debate the merits of this approach, neither the Supreme Court nor this Court has ever suggested that Title VII claims are somehow exempt from the plausibility standard. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (applying the plausibility standard to a Title VII disparate treatment claim); Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015) (same). The panel majority opinion simply held Plaintiffs to that burden and agreed with the district court that they had failed to meet it in this particular case. Accordingly, we concur in the order denying rehearing en banc.
ROSEMARY S. POOLER, Circuit Judge, joined by DENNY CHIN, RAYMOND J. LOHIER, JR., and SUSAN L. CARNEY, Circuit Judges, dissenting from the order denying rehearing en banc:
I join fully in Judge Chin‘s thorough and compelling dissent from the order denying rehearing en banc. I write separately to emphasize two key issues. First, the panel opinion takes the wrong approach to
The principal flaw in the panel opinion is its inversion of the traditional standard applied to pleadings at the motion to dismiss stage. As our court has once before, this panel opinion has imposed a heightened standard for employment discrimination against the instructions of the Supreme Court. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (“[I]mposing the Court of Appeals’ heightened pleading standard in employment discrimination cases conflicts with
These beliefs are accurate reflections of the state of criminal justice in this country.
Plaintiffs in this case offered general statistical studies showing the disparate conviction rates among the general population between black and white individuals. Joint App‘x at 15. In Wards Cove Packing Co. v. Atonio, the Supreme Court recognized that “where figures for the general population might . . . accurately reflect the pool of qualified candidates, . . . we have . . . permitted plaintiffs to rest their prima facie cases on such statistics.” 490 U.S. 642, 651 n.6 (1989) (citations and internal quotation marks omitted), superseded by statute on other grounds,
In response, the panel majority points to only one salient distinction between the general population and the applicant pool: education levels. See Mandala v. NTT Data, Inc., 975 F.3d 202, 211–12 (2d Cir. 2020). On this basis, the panel majority argues that the complaint failed to adequately allege that general population statistics are an appropriate proxy for the qualified applicant pool at issue here, reasoning that “it is not much of a stretch to imagine that arrest and conviction rates are negatively correlated with education (at least to some degree). So, while Plaintiffs’ statistics show that African Americans are on average more likely to have been convicted of a crime than whites, that does not, without more, make it plausible that an African American web developer with the educational and technical qualifications to work at NTT is more likely to have been convicted of a crime than his Caucasian counterpart.” Id at 212. This paragraph, critical to the panel majority‘s reasoning, is where the majority takes a wrong turn.
The panel majority explicitly acknowledges that it assumes what the data will show regarding education levels. In stating it is “not much of a stretch to imagine that arrest and conviction rates are negatively correlated with education (at least to some degree),” the majority draws a negative inference against the complaint that was not in the record. While statistics provided in amicus briefs reveal that the panel majority is likely correct that as education levels rise arrest and conviction rates fall, it is not clear why the panel majority considered it appropriate to amend the record nostra sponte. Nor does the opinion concurring in the denial of rehearing en banc offer further insight as to where this determination may be found in the record.
I am quite willing to agree that education levels and conviction rates are likely negatively correlated. However, I am equally certain that racial disparities will continue to exist even after education levels are considered. It is “nearly certain” that this disparity will continue to exist, given the longstanding link between conviction rates and race across education levels, and conviction rates for black Americans remains higher than for whites as we control for higher educational attainment. While the concurrence argues that its assumptions regarding the relationship between education levels are a matter of “common sense,” that ability to use common sense and judicial experience to draw conclusions is absent once race enters the equation. In the next paragraph the concurring judges profess ignorance of how race will interact with education, “[B]ased on the allegations in the complaint, we have no idea what the difference between African American and white conviction rates will be once we limit our focus to highly educated individuals. . . . All we know is that, for highly educated individuals of any race, . . . conviction rates are unlikely to look like the rates for the general population.” Concurring Op. at 8. Applying the same common sense that most Americans exercise in their views of the criminal justice system and our judicial experience overseeing that system, we know more than this. We know that racial disparities in conviction and arrest rates will persist across all education levels. Indeed, as set forth in another amicus brief, the data is quite clear on this point. See Brief for Megan C. Kurlychek et al. as Amici Curiae Supporting Appellants, Mandala v. NTT Data, Inc., 975 F.3d 202 (2d Cir. 2020) (No. 19-2308) at 8-9 (noting “[b]lack men with some college education have imprisonment risks that are seven (7) times greater than white men with some college education“).
If the panel majority felt comfortable making its own assumptions regarding how education levels interacted with arrest and conviction rates, it is unclear why they did not feel comfortable making the equally obvious
assumption that racial gaps remain as education levels increase. I see no valid principle that permits the court to draw one inference but not the other, particularly at the motion to dismiss stage, all reasonable inferences must be drawn to favor plaintiffs. Our precedent clearly required the panel majority to either make both assumptions or neither, but the majority elected instead to employ its own standards to dismiss this case.
The concurrence notes that the availability of statistics regarding the interaction between race, education, and conviction rates offer sufficient facts for future litigants to successfully plead plausible disparate impact claims. I encourage both future litigants to bring such cases and the Plaintiffs here to move under
After months of protests, violence, and threats to the Nation‘s most storied institutions and principles, more citizens than ever have questioned how different standards of treatment under law for black and white Americans have persisted from our founding to today. Instead of following our precedents and allowing this case to proceed for an examination of the consequences of these inequities, our Court has implemented a novel approach to shut the courthouse doors on plaintiffs. I respectfully dissent.
DENNY CHIN, Circuit Judge, joined by ROSEMARY S. POOLER, ROBERT A. KATZMANN, RAYMOND J. LOHIER, JR., and SUSAN L. CARNEY, Circuit Judges, dissenting from the order denying rehearing en banc:
By denying the petition for rehearing en banc, the Court ignores a question of exceptional importance: the adverse impact of an absolute convictions bar on individuals seeking employment -- an impact disproportionately borne by African Americans. The heightened pleading standard created by the panel majority for disparate impact cases brought pursuant to
As the panel majority observes, “[f]acts are stubborn things,” see Mandala v. NTT Data, Inc., 975 F.3d 202, 205 (2d Cir. 2020), and the statistics cited by plaintiffs in this case highlight an indeed “stubborn” -- and sobering -- fact: significant racial disparities in arrest, conviction, and incarceration rates persist in this country, disparities that have resulted in unfair and unnecessary barriers to employment. By acquiescing to the panel majority‘s use of a heightened pleading standard, the Court weakens
As alleged in their complaint, plaintiffs-appellants George Mandala and Charles Barnett were offered jobs by defendant-appellee NTT Data, Inc. (“NTT“) -- Mandala a position as a software consultant in New York and Massachusetts, and Barnett a position as a web developer in Kentucky. NTT withdrew the offers, however, after learning that Mandala and Barnett had previously been convicted of crimes. NTT did so pursuant to its blanket policy of denying employment to job applicants based solely on the fact of a prior conviction, without considering individual factors such as the nature and circumstances of the crime, its age, its bearing (if any) on the applicant‘s ability to perform the job sought, and evidence of rehabilitation and post-conviction good conduct.
The district court granted NTT‘s motion to dismiss the complaint pursuant to
The panel majority affirmed. It largely adopted the district court‘s reasoning, holding that plaintiffs “provide no allegations to demonstrate that national arrest or incarceration statistics are in any way representative of the pool of potential applicants qualified for a position at NTT.” 975 F.3d at 211. The panel majority rejected plaintiffs’ reliance on national statistics, speculating that education is a “confounding variable” and musing that it is “not much of a stretch to imagine that arrest and conviction rates are negatively correlated with education (at least to some degree).” Id. at 211-12. The panel majority thus presumes that the applicant pool for NTT is more highly educated than the nationwide population as a whole, and it surmises that racial disparities in arrest and conviction rates dissipate with increased education. Id.1
To support its reasoning, the panel majority observes that “[a] simple example of this pitfall would be to apply national height averages to certain subgroups of the population, say NBA players and horse-racing jockeys.” Id. at 211. But this case does not involve unique subgroups such as NBA players and horse-racing jockeys, elite athletes who indisputably are at opposite extremes of the height scale. Rather, the case involves two everyday individuals who received job offers for the not uncommon positions of software consultant and web developer, in different parts of the country, from a company with some 18,000 employees in North America and over twenty offices in the United States.
While NTT‘s applicant pool may be different in some respects from the nationwide general population, it is certainly plausible that the workforce at NTT is not substantially different from the general population, and that any differences that do exist are not so significant as to render the national statistics irrelevant. The panel majority concludes otherwise -- even though the issue arose at the pleading
Even assuming, as the panel majority suggests, that the relevant applicant pool should be limited solely to the web developer and software consultant positions (which is likely unwarranted given the policy‘s blanket nature and geographic reach), it is certainly plausible -- even probable, as explained below -- that the racial disparity in conviction rates does not dissipate with education. And even if education serves to narrow the racial gap in conviction rates, there is no basis to conclude that education eliminates that disparity.
In hypothesizing that NTT‘s applicant pool is so different from the general population that national arrest and conviction statistics must be inapposite, the panel majority draws an inference against plaintiffs, disregarding governing pleading standards, controlling caselaw, and the well-settled principle that “[o]n a motion to dismiss, the question is not whether a plaintiff is likely to prevail, but whether the well-pleaded factual allegations plausibly give rise to an inference of unlawful discrimination, i.e., whether plaintiffs allege enough to ‘nudge[ ] their claims across the line from conceivable to plausible.‘” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (citations omitted); accord Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015). And in doing so, the panel majority imposes a heightened pleading standard for
For these and the further reasons discussed below, I respectfully dissent.
I. The National Statistics
As plaintiffs plausibly allege and national statistics show, “African Americans are arrested and incarcerated for crimes at higher rates than Whites, relative to their share of the national population.” Joint App‘x at 15. The complaint cites statistics from the Federal Bureau of Investigation (the “FBI“), the U.S. Department of Justice, the U.S. Census Bureau, the U.S. Equal Employment Opportunity Commission (the “EEOC“), and scholars, as follows:
- as of 2010, 40% of prisoners in the United States were African American, while African Americans represented only 13% of the overall U.S. population (Prison Policy Initiative study)2;
- some 26.9% of arrests are of African Americans, double their percentage of the general population (FBI and Census statistics);
- projections based on recent trends in incarceration estimate that one out of every three Black males born today will go to prison, compared to just one out of every seventeen White males, see Marc Mauer, Addressing Racial Disparities in Incarceration, 91 Prison J. 87S, 88S (2011);
- audit studies conducted by researchers at Harvard and Princeton found that African Americans with criminal records were particularly disadvantaged in the job market compared to Whites with criminal records, Joint App‘x at 15 (citing scholarly journals); and
- the Department of Justice found that Blacks are arrested and convicted at higher rates than Whites, leading the
EEOC to conclude that “[n]ational data . . . supports a finding that criminal record exclusions have a disparate impact based on race and national origin.” Joint App‘x at 15.
Department of Justice statistics, noted in the EEOC Enforcement Guidance, show that, as of 2010, Black men were incarcerated at almost seven times the rate of White men: Black men were imprisoned at the rate of 3,074 per 100,000, while White men were imprisoned at the rate of 459 per 100,000.3 And much of this disparity cannot be attributed to the conduct of the individuals subjected to incarceration. For example, studies show that White and Black Americans are equally likely to use drugs and that White Americans are more likely to deal them; yet, Black Americans are arrested for drug crimes at far higher rates. See Am. Civil Liberties Union, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, at 28-29 (2020) (https://www.aclu.org/report/tale-two-countries-racially-targeted-arrests-era-marijuana-reform); Christopher Ingraham, White People Are More Likely to Deal Drugs, But Black People Are More Likely to Get Arrested For It, Wash. Post (Sept. 30, 2014) (https://www.washingtonpost.com/news/wonk/wp/2014/09/30/white-people-are-more-likely-to-deal-drugs-but-black-people-are-more-likely-to-get-
arrested-for-it/); see also Kurlychek Amicus Brief at 11 (“[W]hite youth are more likely than minority youth to use marijuana, [but] studies continually show that minority youth are more likely to be arrested for such crimes, particularly marijuana possession.“).
While the panel majority speculates that the applicant pools for NTT are more highly educated than the general population and that racial disparities in arrest and conviction rates will decrease with education (drawing the inferences against plaintiffs), see 975 F.3d at 212, as amici point out, “[t]here are no available statistics to show that racial disparities in criminal conviction rates decrease, much less disappear, with increased education.” Kurlychek Amicus Brief at 8-9. To the contrary, statistics show otherwise. For example, one study shows that “Black men with some college education have imprisonment risks that are seven times greater than white men with some college education (4.9% for Black men compared to 0.7% for white men).” Id. at 9. And even assuming the disparities lessen with increased education, there is no reason to assume that they disappear altogether. Indeed, it is far more reasonable, at the pleadings stage, to infer that they do not.4
We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed. This is particularly true for blacks who have suffered and still suffer from the burdens of discrimination in our society. To deny job opportunities to these individuals because of some conduct which may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden.
Green v. Missouri Pac. R.R. Co., 523 F.2d 1290, 1298 (8th Cir. 1975). These observations still hold true today.
II. Plaintiffs Properly Relied on National Statistics
As the majority acknowledges, national statistics can be probative of whether a challenged policy has a disparate impact. Mandala, 975 F.3d at 210. In Dothard v. Rawlinson, for example, the Supreme Court observed that “[t]here is no requirement . . . that a statistical showing of disproportionate impact must be based on analysis of the characteristics of actual applicants.” 433 U.S. 321, 330 (1977). There, the plaintiffs were permitted to rely on national height and weight data for men and women, even though the defendant argued that the only relevant data was that of the applicant pool for corrections-officer positions in Alabama. Id. at 329-30. Indeed, the Supreme Court specifically rejected the defendant‘s argument that “a showing of disproportionate impact on women based on generalized national statistics should not suffice to establish a prima facie case,” id. at 330, the very principle that forms the basis of the panel majority‘s holding here.
Likewise, in Malave v. Potter, this Court rejected the district court‘s holding, on a summary judgment motion, that plaintiffs
In the context of a motion to dismiss, a plaintiff has even more latitude in relying on national statistics. We have held that “[a]t the pleading stage, [a plaintiff] need not prove the accuracy of [a statistical study‘s] findings or the rigor of its methodology; he need only generally allege the facts that, accepted as true, make his alleged injury plausible.” John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 737 (2d Cir. 2017); see also id. (“a facial attack on the pleadings is not the proper stage to determine whether [the Department of Consumer Affairs‘] sampling methods justified its declaration of widespread overcharging“); Brown v. City of N.Y., No. 16 Civ. 1106, 2017 WL 1102677, at *6 (E.D.N.Y. Mar. 23, 2017) (“[S]tatistics that may ultimately prove insufficient can nevertheless support a plausible inference of disparate impact on a motion to dismiss.“).
Numerous courts have applied these principles to deny motions to dismiss disparate impact claims that rely on general population statistics to challenge such policies, concluding that plaintiffs plausibly stated a disparate impact claim under
Here, plaintiffs did not rely solely on general population statistics nor did they rely on statistics in a conclusory or abstract fashion. Rather, they alleged specific facts and circumstances showing that NTT‘s blanket convictions bar had an adverse impact on them personally.
Mandala applied for a salesforce developer position while residing in Rochester, New York, and he was offered a position as an application software development senior principal consultant in Wellesley, Massachusetts (to work remotely). Barnett applied for a web developer position while residing in Frankfort, Kentucky, and was offered employment designing websites for the Kentucky Department of Education. Both received offers of employment from NTT, but had their offers withdrawn once NTT learned that they had prior convictions. NTT never asked Mandala and Barnett for information about their convictions, rehabilitation, or post-conviction conduct. Barnett, for example, had obtained two degrees, including a master‘s in computer science technology -- after his conviction. He also worked for four years for the Commonwealth of Kentucky doing technology and administrative work -- after his convictions. NTT did not consider these post-conviction developments because of its blanket policy.
Mandala and Barnett were clearly qualified for the NTT positions -- they were offered employment -- but the policy barred them from employment without any individualized consideration of the circumstances of their convictions, the relationship between their criminal history and their ability to perform the jobs, or their efforts to rehabilitate and post-conviction conduct. Both were impacted by NTT‘s policy even though they lived in different parts of the country and applied for different jobs. After Barnett‘s offer was withdrawn, he “sought to apply for other positions with NTT,” but NTT would not consider him for any position because of its policy. Joint App‘x at 14. Mandala and Barnett are striking examples of the adverse impact a blanket convictions bar can have on individuals and their families.
In addition to these specific individual allegations, the complaint asserted broader allegations: NTT‘s policy “systematically eliminates qualified African American applicants based on their race, color or national origin” throughout the United States, Joint App‘x at 8, and NTT is a “global” information technology services company with some 18,000 employees in North America and over twenty offices in the United States. In light of the breadth of NTT‘s blanket policy -- it applies to all jobs, at all levels, all across the country -- plaintiffs’ reliance on national statistics at the pleadings stage was eminently reasonable, and the national statistics surely made plaintiffs’ claims of disparate impact discrimination even more plausible.
III. The Panel Majority Misapplied the Pleading Standards
On a disparate impact claim, a plaintiff is required only to prove that “a facially
At the pleadings stage, a plaintiff is required only to allege facts giving rise to a plausible inference of a disparate impact based on race -- a plausible inference that an employment practice “has the effect of denying members of a protected class equal access to employment opportunities.” M.O.C.H.A. Soc‘y, Inc. v. City of Buffalo, 689 F.3d 263, 273 (2d Cir. 2012). On a motion to dismiss for failure to state a claim, “the question is not whether a plaintiff is likely to prevail, but whether the well-pleaded factual allegations plausibly give rise to an inference of unlawful discrimination, i.e., whether
plaintiffs allege enough to ‘nudge[ ] their claims across the line from conceivable to plausible.‘” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (citations omitted); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (“under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case“).7 Until now, we have consistently recognized that at the pleadings stage, without discovery, a proper record usually has not yet been developed. Accordingly, the plausibility standard “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal[ity].” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 556 (2007)); accord Citizens United v. Schneiderman, 882 F.3d 374, 380 (2d Cir. 2018) (for plaintiffs to “‘nudge[ ] their claims across the line from conceivable to plausible,’ they must ‘raise a reasonable expectation that discovery will reveal evidence’ of the wrongdoing alleged, ‘even if it strikes a savvy judge that actual proof of these facts is improbable‘“) (quoting Twombly, 550 U.S. at 570, 556)).8
Here, the district court misapplied the standards applicable to
By affirming the district court‘s decision, the panel majority adopts the district court‘s deeply flawed reasoning that plaintiffs were required to provide, at the pleadings stage and before discovery, statistics as to conviction rates for NTT‘s specific applicant pool.9 In doing so, the panel majority makes numerous fundamental errors:
First, it rejects plaintiffs’ reliance on national statistics, when numerous courts -- including this Court and the Supreme Court -- have held that national statistics can support a disparate impact claim. At
Second, the panel majority ignores the likelihood that, even if specific applicant pool statistics turn out to be more precise in the end, general population statistics would still be relevant and a logical starting point for the analysis. See Williams v. Wells Fargo Bank, N.A., No. 15-cv-6245, 2016 WL 4149987, at *5 (D.N.J. Aug. 4, 2016) (“Although the Court agrees with Defendant that the [national] statistics are not tailored to the New Jersey counties in which Defendant does business, the Court finds that they lend sufficient support to Plaintiff‘s allegations to survive the Motion to Dismiss.“).
Third, the majority holds that plaintiffs should have provided statistics pertaining to NTT‘s applicant pool -- “more granular data,” Mandala, 975 F.3d at 212 -- when the applicant pool (assuming the relevant applicant pool is something other than the national workforce) has not yet been defined and plaintiffs have not yet had discovery. Even assuming that statistics as to a specific applicant pool, e.g., salesforce developers in upstate New York, software consultants in Massachusetts, web developers in Kentucky, or -- in the majority‘s words -- applicants “representative of the pool of potential applicants qualified for a position at NTT,” id. at 211, turn out to be more accurate in the end, the absence of such statistics at the motion-to-dismiss stage should not be fatal to plaintiffs’ claims, as the appropriate applicant pool cannot be defined until after discovery, when more details about NTT‘s job requirements and applicant pools would become available. Indeed, as the panel majority acknowledges, see id. at 212 (recognizing that plaintiffs are “undoubtedly working from an informational disadvantage at this early point in the proceedings“), some of this information surely is only in NTT‘s possession and not publicly available.10
Fourth, the panel majority fails to acknowledge the reasonable likelihood that the relevant applicant pool is the national workforce, given that plaintiffs sought employment with NTT in different parts of the country and for different positions, NTT is a global company, with some 18,000 employees and twenty offices in the United States, and its blanket policy applies to all jobs, at all levels, all across the country. The panel majority focuses on “salesforce developer” and “web developer” positions, jobs it speculates “require at least some educational or technical experience that is not shared by the general population.” Id. at 211-12. It is not apparent, however, that “salesforce developer” and “web developer” positions, whatever they may be, require such specialized training or education as to make general population statistics inapplicable. Moreover, the panel majority‘s focus on the two positions ignores plaintiffs’ allegations that after Barnett‘s offer was rescinded for the “web developer” position, he “sought to apply for other positions with NTT” but was told he would not be considered for “other positions because of his felony convictions.” Joint App‘x at 13-14. Plaintiffs’ claims are not limited to salesforce developer and web developer positions, but the
Fifth, the panel majority speculates that NTT‘s applicant pool is more educated than the national population, when it is plausible, given NTT‘s size and geographic reach, that any differences in education levels are insignificant.
Sixth, the panel majority assumes the existence of a “confounding variable” and “imagine[s]” that “arrest and conviction rates are negatively correlated with education (at least to some degree),” without acknowledging the likelihood that racial disparities will continue to exist to some degree within the qualified applicant pool, even as the level of education increases. 975 F.3d at 211-12. While the panel majority‘s assumptions would mean that the qualified applicant pool would have lower conviction rates, those assumptions would not necessarily eliminate, or even reduce, the disparities in conviction rates within the pool, that is, disparities based on race between similarly educated groups. Even assuming that NTT‘s applicant pool is more educated than the general population, it is unlikely that the racial disparities in arrest and incarceration rates that exist nationally and in every state somehow disappear at NTT.
Seventh, the panel majority surmises that the national statistics do not, “without more, make it plausible that an African-American web developer with the educational and technical qualifications to work at NTT is more likely to have been convicted of a crime than his Caucasian counterpart,” id. at 212, when it is perfectly plausible, in light of the statistics discussed above (and, indeed, the experience of the two plaintiffs in this case), that a college-educated African American applying for a position at NTT is more likely to have been convicted of a crime than his college-educated Caucasian counterpart.
And finally, instead of drawing the reasonable inferences in favor of plaintiffs, the panel majority draws inferences against them, and chooses the inferences it prefers. See Menaker v. Hofstra Univ., 935 F.3d 20, 31 n.38 (2d Cir. 2019) (plaintiff must show discrimination is “one of several possible inferences,” not ”the most plausible” inference (internal quotation marks omitted)).
In short, the panel majority holds plaintiffs to a heightened pleading standard, requiring them to provide statistics relating to a specific applicant pool, even though a specific applicant pool has not yet been defined and plaintiffs have not yet had access to NTT‘s records. In concluding that plaintiffs failed to state a plausible claim of disparate impact discrimination, the panel majority rejects national statistics that clearly are a logical starting point for the analysis, because of its assumption that education is a “confounding variable” and its surmise that racial disparities in arrest and conviction rates dissipate as education increases.
At the end of the day, after discovery and an opportunity to be heard, plaintiffs’ claims may ultimately fail. But in light of the national statistics as well as plaintiffs’ allegations with respect to their specific circumstances and their allegations with respect to NTT generally, their claim -- that NTT‘s blanket policy of denying employment to job applicants based solely on the fact of a prior conviction, without considering individual circumstances, has a disparate impact on African Americans -- is anything but implausible.
IV. Conclusion
Our Court has long recognized the importance of Title VII and the rights it protects.11 By denying the petition for rehearing
We should rehear this case en banc, vacate the judgment, and remand for plaintiffs to proceed with their claims.
RAYMOND J. LOHIER, JR., Circuit Judge, joined by ROSEMARY S. POOLER, ROBERT A. KATZMANN,* DENNY CHIN, and SUSAN L. CARNEY, Circuit Judges, dissenting from the order denying rehearing in banc:
Although I have very rarely voted to proceed in banc, for the reasons expressed by Judge Chin and Judge Pooler in their opinions dissenting from the denial of rehearing in banc, I dissent. The majority suggests that this case is about no more than applying the plausibility pleading standard set by Iqbal and Twombly to disparate impact cases under Title VII, and that substantive rights under Title VII itself remain unaffected. But a pleading is the key to the courthouse door. When, as here, the standard for pleadings is raised arbitrarily high or subjected almost entirely to the uneven vagaries of judicial “experience” and “common sense,” then those substantive rights that reside just behind the door wither and die.
Mark the panel majority‘s decision as one that will need to be revisited and corrected by us, or by Congress, in the future.
* Judge Katzmann concurs in Judge Lohier‘s view that: “When, as here, the standard for pleadings is raised arbitrarily high or subjected almost entirely to the uneven vagaries of judicial ‘experience’ and ‘common sense,‘” corrective action by the courts or Congress is in order.